Author: neilfoster

neilfoster

Should Christian churches withdraw from marrying if same sex marriage is introduced?

The above question has been raised in Australia by news that the Assembly of the Presbyterian Church in NSW has recommended to its national body that ministers of the Church should withdraw from performing legally recognised marriages should proposals for recognising same sex marriage proceed. (I have discussed previously the situation with same sex marriage in Australia, noting that at the moment it is generally regarded as a matter for the Federal Parliament to decide.)

Many Christians who take the Bible seriously take the view that homosexual practice is contrary to God’s will for humanity as expressed in the Bible. (See, for a recent clear and careful analysis of the Biblical position, this post from the Principal of Moore Theological College in Sydney.) But, despite an increasing trend to civil ceremonies, many marriages are still conducted by ministers of religion. Other churches and groups around the Western world have suggested, in light of the adoption or possible adoption of same sex marriage by their governments, that Christians who believe this is so ought to withdraw from the solemnisation of marriages altogether. The logic of many of these arguments was expressed by a spokesman for the NSW Presbyterian Church, Rev John McLean, as follows:

It would still be possible to form a life-long monogamous heterosexual union under a changed act. But the act, and the way Australian society will use it, will be so different from the classic Christian view that the rationale for the church sharing in the system will have gone. From the church’s point of view, a wonderful blessing from God would be largely emptied of its meaning and purpose. It might be better for us not to be part of a system which endorses that.

But does it follow that Christians who object to same sex marriage on Biblical grounds should withdraw from solemnising legally binding marriages? I would like to suggest that it does not, and that the arguments presented in favour of this view are flawed.

(Perhaps I should note that, while most of the material I post on this blog is relevant to the community generally, to some extent this debate is a “family discussion” within the Christian church, of which I am of course a part. Observers who are not involved may wish to move on at this point! But I would like to address these issues to fellow believers, as I think there are some dangers in the course of action being proposed.)

The arguments in favour of withdrawal

Many of those who argue for withdrawal from a system that recognises same sex marriages do so from a position somewhat similar to that noted above- that the “institution” of marriage would be so changed by this development that it would be no longer right for Christians to support it. We may call this the “institutional change” argument.

Others have put forward the argument in terms which suggest that they think it will contribute to religious freedom. Concerned at the prospect of clergy being forced to conduct same sex weddings, they argue that if the church stops conducting weddings at all, then there will be no legal grounds for such an action. This is the “clergy religious freedom” argument.

These seem to be the main two arguments that are presented in favour of withdrawal.

The current situation with religious celebrants

It seems best, before addressing these, to outline the current position of religious celebrants in Australia. Under s 51(xxi) of the Commonwealth Constitution, the Federal Parliament has a concurrent legislative power over the topic of “marriage”. Prior to 1963 the Federal Parliament had not exercised that power in any substantial way, but with the commencement of the Marriage Act 1961 (Cth) (the Act) it took over the whole area from the States. The Act regulates the whole topic of the celebration and validity of marriages in Australia.

There are currently four categories of persons authorised under the Act to solemnise legal marriages in Australia (“authorised celebrants”). They are (1) ministers of religion of “recognised denominations”- Part IV, Div 1, Sub-div A of the Act; (2) public servants who work at Registry offices- Part IV, Div 1, Sub-Div B; (3) persons appointed as “marriage celebrants” under Part IV, Div 1, Sub-Div C, who may be either “civil” celebrants, or (4) such persons who are ministers of religion but not associated with the major “recognised denominations”. The final category will then include ministers of small, independent churches, for example.

In the interesting decision of the present Chief Justice of the High Court, French J (as his Honour then was as a member of the Federal Court) in Re Michael William Nelson v M Fish and R Morgan [1990] FCA 28 (9 February 1990) was asked to decide whether a “minister” of a group called “Gods Kingdom Managed by his Priest and Lord” should be recognised as a marriage celebrant. The case sets out the administrative guidelines used by the Attorney-General’s Department to determine whether or not a group is a “recognised denomination” under s 26 of the Act (see para [4] point 5), and whether or not someone should have been appointed as an independent “religious” celebrant under the provisions of s 39(2) of the Act as it then stood.

(Those who are interested in the history of the law relating to the need for the presence of a celebrant at the celebration of a valid marriage, and what that presence involves, may like to consult the fascinating case of W and T [1998] FamCA 49 (7 May 1998), holding that an authorised celebrant who was at the back of the church while promises were taken by someone else, was to be regarded for the purposes of the Act as “solemnising” the marriage.)

The list of “recognised denominations” for the purposes of s 26 of the Act may be found here. It includes, of course, the Presbyterian Church of Australia.

Withdrawal for celebrant religious freedom reasons

Would it be a good idea for a church to withdraw from a system that recognised same sex marriage to avoid ministers of that church being obliged to solemnise same sex marriages? In my view this would not be necessary under any plausible proposals for same sex marriage in Australia in the near future.

All proponents of the change have said that they would not require ministers of religion to perform same sex weddings. The most recent draft Bill introduced by the Leader of the Opposition on 1 June 2015, for example, provides, in Schedule 1 clauses 5 & 6, an amendment to s 47 of the Marriage Act1961 which says that that a minister of religion may not be obliged (by the Marriage Act or any other Act, such as a law prohibiting sexual orientation discrimination) to solemnise a same sex marriage. Protections of this sort were introduced in the UK when that country’s Marriage (Same Sex Couples) Act 2013 was introduced- see the complicated section 2 of the Act, accompanied by an amendment to the Equality Act 2010, s 25A, which explicitly provides that there is no breach of sexual orientation discrimination laws by a member of the clergy declining to be involved in a same sex wedding. (The complex nature of these provisions, however, seems to point to the need for much more careful drafting than the somewhat minimal s 47 amendments proposed in Australia at the moment.)

There is no denying, of course, that if same sex marriage is introduced there may be political pressure put on ministers of religion to solemnise same sex marriages. (See this report from the UK indicating that, even with the so-called “quadruple lock” protection for the Church of England under their legislation, two same sex activists were threatening to take the church before the European Court of Human Rights to enforce a right to be married in their local Church of England building.) However, it seems to me that that is a battle to be fought in the future. If the law were to change to require all marriage celebrants to solemnise same sex weddings, then consideration could be given at that stage to withdrawal from the system. (Although it would seem to be arguable that such a law would be so extreme that it might even breach the fairly minimal religious freedom protections provided by s 116 of the Constitution, and could be challenged on that basis. See my previous post for discussion of religious freedom protections in general in Australia at the moment.)

Withdrawal on “institutional change” grounds

A stronger argument can be made that the institution of marriage would be so fundamentally altered by introduction of same sex marriage that churches should no longer support it. But in my view, again, this argument is not convincing.

The fact is that marriage as practised in Australia today already falls short of Biblical ideals of life long faithfulness and commitment. But, justifiably, churches continue to solemnise marriages under the current law. Marriage is not a special custom for believers; it is generally recognised that it is what the older theologians called a “creation ordinance”, designed for the general good of mankind. While some examples of marriages take place where the Bible may suggest they ought not to, the good achieved by Christian churches in celebrating marriages generally seems to outweigh the examples of cases where people are being married wrongly. (To give an example, many Christians take seriously Jesus’ words that there are very limited grounds that justify divorce. Yet a person who may have obtained a divorce from a previous marriage in circumstances which would not fall within the category recognised by Jesus, may under our law be free to remarry. The fact that such marriages currently take place, despite them being contrary to God’s word, does not of itself mean that the institution of marriage as a whole should be abandoned.)

There are a number of important benefits, from a Christian perspective, in Christian ministers being willing to solemnise marriages as part of the general legal system. They will have the opportunity to serve members of the community who may have no other contact with a church, by not only celebrating a joyful occasion with them, but also by explaining a Biblical view of marriage. They will have a chance, too, if the couple are interested, to explain other aspects of the Christian gospel. They will make a connection that may see the couple come back, either for themselves or with children who may come along later. Many of these opportunities may be lost if churches decline to continue to solemnise marriages for members of the community at large.

What model of withdrawal is suggested?

The details of any proposed withdrawal from the general marriage system are not yet clear. Most proposals suggest that ministers of religion would no longer be “authorised celebrants” under the Act, with power to solemnise a legally effective marriage. Some suggest that churches might then say that they will conduct some sort of religious “blessing” ceremony after a couple has been to a registry office to celebrate their marriage there. Presumably this could be offered to both church members and to those outside the church if they were interested. It should be noted, however, that a decision to specifically decline to conduct “same sex blessing ceremonies” would still arguably be viewed as a decision which was discriminatory on the grounds of sexual orientation, if those ceremonies were freely available to heterosexual couples. Ironically, the church may then find itself, if not conducting “marriages”, liable for discrimination actions, unless they were able to rely on a “balancing clause” in relevant legislation. (See my previous discussion of balancing clauses in discrimination legislation, noting that courts in the past have given a very narrow reading of such clauses, even in the case of religious organisations.)

It might also be noted that at the moment s 113 of the Act already makes provision for a “religious” ceremony which is separate from a civil ceremony. Under s 113(5), where a couple have been through a legally recognised marriage ceremony, and they produce appropriate documentary proof of the fact, then they are allowed to go through a religious ceremony in front of a minister of religion, who does not need to be authorised to conduct marriages under Australian law. Any document issued by the minister, however, has to specify that the parties were already legally married. The provision seems to have been introduced to allow parties with strong religious convictions, but whose minister was not authorised under the Act, to have a specifically religious marriage ceremony. If an individual minister of religion chose to withdraw from the civil marriage system, they could presumably use the provisions of s 113 to conduct a religious ceremony after parties had been through a civil ceremony.

The detriments of withdrawal

Having briefly considered arguments in favour of withdrawal from the marriage system, let me outline a number of detriments which I see as flowing from such a decision. I have already noted the risk of losing contact with those outside the church who would no longer come where the churches were not providing the service of “marriage”.

Another set of problems arises from the simple fact that the legal system over many, many years has developed an interconnected set of doctrines and principles dealing with the status of marriage, its legal consequences, how it may be terminated in divorce or nullity, and the consequences of such termination for the rights of the parties, including property allocation and child custody issues. Yet if a church proposed to offer its members a form of “religious marriage” distinct from “civil marriage”, it would have to soon start to find ways of dealing with this multitude of issues. What if the parties who entered a “religious marriage” broke up? Would the church develop a “religious divorce” procedure? Presumably if it had separated itself from the “civil marriage” system, then it could not simply rely on “civil divorce”. What would happen if the religious rules would justify a divorce, but the civil rules would not (or vice versa?) Will all churches recognise “religious marriages” celebrated by other churches or religions? What criteria would be adopted for recognition? Who would make the decision?

In short, all the many and varied issues that our legal system has wrestled with for centuries in dealing with the status of marriage, would be up for grabs if churches pulled out of the civil system and started trying to regulate their own “religious marriages”.

Another pragmatic reason for resisting the change would be the possibility for confusion among persons who had been through ceremonies at a church, as to whether they were married or not. If all the paraphernalia of approved forms and registers are no longer used, one’s experience of life suggests that proper records may not be kept, that not all parties will have gone off and got the “civil” marriage before the religious one, and that there may be some serious consequences down the track.

Conclusions

In my view, the Bible takes a very pragmatic view of marriage. While there are clear principles set out for what marriage should be (a man and a woman, able to consent, committed to each other in the sight of the community, for life to the exclusion of all others), through the history recorded in the Bible these rules were not always followed. To summarise what needs to be a long argument (which I explore in slightly more detail here in a piece from a few years ago), it seems to me that in terms of what is needed to constitute a valid marriage, the Biblical view is that a marriage recognised as valid by the community in which one lives, is a valid marriage. For when we have rules forbidding adultery, we need to know who is married to whom with a high degree of certainty. The Bible, it seems to me, knows nothing of people being “married in God’s sight” but not in the view of the community.

Hence it seems to me a bad idea for churches to withdraw from celebrating marriages before the moment (if ever) when they literally have to do so because they are being told to disobey God’s word. Marriage is a good thing; as the letter to the Hebrews puts it: “Marriage should be honored by all” (Heb 13:4). Christians should keep on offering this good thing to the community for as long as they are able.

neilfoster

Same Sex Marriage, Religious Freedom and the Vibe in Obergefell

Much has been written in the last few days about the decision of the United States Supreme Court in Obergefell v Hodges 576 US ___ (2015) (26 June 2015) that there is a previously unknown “right” of same sex marriage in the United States Constitution. In this brief comment I do not propose to analyse in great detail the Constitutional basis for the decision of the majority of 5 Justices, written by Kennedy J, nor the trenchant critique of those reasons offered by the 4 dissenting Justices. Others who are much more versed in US Constitutional law have started to do that already- see, e.g., the helpful collation of reactions from scholars and commentators at the excellent First Things website. But I will try to summarise the decision, before turning to one of the main unresolved issues flowing from it: what are its implications for religious freedom in the US? I will then briefly offer some thoughts on how these issues might play out in Australia.

The Majority Decision

Kennedy J offers a keen insight into the logic of the movement for same sex marriage around the Western world in his opening paragraph:

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. (slip op, at 1-2)

The core of the movement is the idea of “freedom”, and not just freedom classically defined as freedom from external restraint (the dissent of Thomas J outlines in some detail this traditional understanding of liberty), but the freedom to “define and express” one’s “identity”. With those opening words there was never any doubt where this judgment was going: to the post-modern world, nothing is “fixed” or “static”, all must be “fluid” and “dynamic”, including of course sexual preference and even gender.

And yet… even here we see a problem. For of course to make the point that we must radically redefine an institution that has formed the basis for society in all human cultures for millennia, Kennedy J wants to appeal to the fact that homosexual persons in fact are “trapped” into an identity not of their own making at all. So we read later of the fact that the “immutable nature” of the homosexual petitioners (slip op, at 4) “dictates” that they must find fulfilment in marriage to a person of the same sex. On the evidence of psychiatry, we later read that “sexual orientation is both a normal expression of human sexuality and immutable.” (slip op, at 8, emphasis added) So, trapped as they are in this unchangeable homosexual nature, Kennedy J for the majority holds that the law must allow them to marry others like themselves, or else be condemned to a “life of loneliness” (slip op, at 14: “Marriage responds to the universal fear that a lonely person might call out only to find no one there”; see also the moving conclusion at slip op, 28: “Their hope is not to be condemned to live in loneliness.”)

There is much of this emotive language, and stress on the personal pain felt by the petitioners in their relationships not being recognised as marriage. And of course if indeed the predominant purpose of marriage is to allow human beings to find solace and fulfilment in the love of another (but of course, why only one other?), then it seems grossly unjust to deny this institution to same sex couples. We see that early on in his judgment Kennedy J stresses this:

Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations. (slip op, at 3).

Others have asked, of course, that if emotional fulfilment is what is required, why does the State become involved at all? As the dissenters note, the fact is that marriage has never been seen simply as a vehicle for the benefit of the two parties. It is an institution which is directed toward the regulation of sexual relationships between men and women, because such relationships regularly result in the birth of children, who long experience teaches us are usually best off when raised from birth by their biological parents in an enduring family. Yet it is well into the judgment before Kennedy J notes that marriages relate to children, and where he does so it is to say that same sex marriage protects the rights of children of same sex couples (see slip op, at 14-15). Indeed, traditional marriage laws, we are told in an astonishing remark, “harm and humiliate the children of same-sex couples”! Never mind that in any same sex family where children are present, all of the children will have been deprived, in some cases deliberately and carefully, of the companionship and love of one of their biological parents.

Without going into all the details, the majority judgment finds in the words of the Fourteenth Amendment to the US Constitution, that “no State shall ‘deprive any person of life, liberty, or property, without due process of law'”, a new “liberty” for same sex couples to marry, in an example of what is called “substantive due process”. Roberts CJ in dissent notes that it was precisely this sort of Constitutional “magic trick” that was used by the Supreme Court in the infamous Dred Scott v Sandford 19 How 393 (1857)  decision to find an implied property right that could not be interfered with to set slaves free; and precisely the same logic that was used in the almost equally discredited Lochner v New York 198 US 45 (1905) decision to undermine labour laws aimed at achieving fair conditions for workers, again finding a “right” in employers to not be deprived of income by interference with their “freedom of contract”. Since those cases later decisions had tried to carefully hedge around the ability of the Court to “discover” new rights based on their intuitions of fairness, in cases such as Washington v. Glucksberg, 521 U. S. 702, 721 (1997). But at slip op 18 the majority turn their back on the checks and balances in that decision and strike out to find their ideal of a new right.

The right, they say, is also supported by the “Equal Protection” clause of the Fourteenth Amendment (see slip op at 19) in some mysterious and not quite defined way. Indeed, to an Australian lawyer a number of the passages in the majority decision are more than slightly reminiscent of Dennis Denutio in the classic legal comedy movie The Castle saying when challenged as to what part of the Constitution he was relying on: “It’s the vibe!”

In the end, however they get there, the result is clear:

These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. (slip op, at 22)

And “marry”, of course, means marry someone of the same sex.

The Dissenters

There is no space or time here to do justice to the 4 dissenting opinions, each of which in their own way offers clear and, to my mind, compelling reasons why the majority are wrong. Roberts CJ, as noted, compares the constitutional “logic” of the majority with that of previous decisions later regarded as clearly wrong. He stresses that the Court is not a legislature, and should not be taking to itself the role of making a fundamental change in an ages-old social institution.

The Chief Justice is also very clear: such logic as is present cannot be confined to the decision to allow same sex couples to marry each other. The argument from “loneliness” and emotional support inevitably leads to the next stage, which is the recognition of polygamous relationships as valid marriages. Nothing in the majority judgment, apart from, as his Honour notes, a sprinkling of the number “two” at points where it plays no part in the reasoning, prevents this next step.

Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one. (slip op, at 20)

And, as the Chief Justice notes, there is a decision from Utah at the moment which may present this issue very shortly: see Brown v Buhman, 947 F Supp 2d 1170 (Utah 2013), appeal pending.

Scalia J is his usual scathing self, well worth reading about the threat to democracy by the way the majority reasons. Thomas J analyses the historical roots of the idea of “liberty” and points out how far the majority decision has moved from this concept as referring to freedom from government action. His Honour’s reference to Magna Carta (slip op, 4) rang many bells with me after the recent Oxford conference on this topic. He notes, strikingly, that in the 35 States of the US where the question of recognition of same sex marriage has been put to the people of the State in a referendum, 32 of those States have voted to retain the traditional model of male/female marriage- slip op, 14. Yet these democratic decisions are obliterated by the ruling of 5 Justices.

Alito J at slip op 3 helpfully identifies the focus of the majority decision on the fundamental purpose of marriage as “to promote the well-being of those who choose to marry”. But, his Honour notes at 4:

This understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.

Adherents to different schools of philosophy use different terms to explain why society should formalize marriage and attach special benefits and obligations to persons who marry. Here, the States defending their adherence to the traditional understanding of marriage have explained their position using the pragmatic vocabulary that characterizes most American political discourse. Their basic argument is that States formalize and promote marriage, unlike other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children. They thus argue that there are reasonable secular grounds for restricting marriage to opposite-sex couples.

As his Honour goes on to say, slip op 5, even if this model of marriage is not universally accepted in Western societies, surely a State may decide that they do not wish to “contribute to marriage’s further decay” by further departing from the ideal.

Religious Freedom implications

What, then, are the implications for religious freedom flowing from this decision? Here again there is a strong division between Kennedy J for the majority, and the dissenters.

Kennedy J devotes one short paragraph to the issue, at slip op 27, almost literally an afterthought:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advo- cate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.

The choice of language seems deliberate. Rather than a robust assertion of a right to the “free exercise” of religion, the literal words of the First Amendment, we see an attenuated concession that believers may “advocate” and “teach” against recognition of same sex marriage. The dissenters pick this up.

Roberts CJ puts it so clearly that I can do little better than provide an extended quote:

Today’s decision… creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority— actually spelled out in the Constitution. Amdt. 1.

Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same- sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

The other members of the Court comment in similar fashion- see Thomas J at slip op 14-15:

Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect…

In our society, marriage is not simply a governmental institution; it is a religious institution as well… Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.

The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph, ante, at 27. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition. Religious liberty is about more than just the protection for “religious organizations and persons . . . as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Ibid. Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.

And in a telling footnote to the above quote, his Honour notes that under the terrible regime where racially mixed marriages were forbidden, one State at least made it a criminal offence for a clergyman to celebrate such a marriage, even where his religion allowed him to. The suggestion is that, conversely, under a same sex marriage regime some States at least may try to force clergy to be engaged in celebration of such marriages, contrary to their faith.

Alito J is also unusually blunt:

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reas- sure those who oppose same-sex marriage that their rights of conscience will be protected. Ante, at 26–27. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

Implications for Australia

I have written in a previous post about the current state of play as far as recognition of same sex marriage in Australia is concerned. In short, unlike the US, “marriage” is a head of legislative power given to the Federal Parliament, not left to the States, and even though it is a “concurrent” power (which can be exercised by either State or Federal Parliaments), any valid exercise by the Federal Parliament will override any conflicting State (or Territory) law. At the moment the clear definition of “marriage” in s 5 of the Marriage Act 1961 (Cth) precludes recognition of same sex marriage at any level in Australia, a result confirmed by the decision of the High Court of Australia in The Commonwealth v Australian Capital Territory [2013] HCA 55, (2013) 250 CLR 441. (For a detailed comment on that decision see my paper here.)

This situation could change, then, if legislation amending the Marriage Act were to pass Federal Parliament. As at the date of writing the Government parties have a firm policy opposing such a change, which they went into the last election promising to adhere to. The main Opposition Party, the ALP, has a policy allowing its members a free vote on the issue, although recently one of the senior leaders of the party suggested that it should make support for same sex marriage a binding plank of party policy in the near future. Minor parties differ in their views among themselves. Press reports suggest that if  the governing Liberal/National Coalition were to allow a free vote of its members, some at least would support a change. But at the moment it is unclear whether there would be a majority for the change even if all members of Parliament were able to vote freely.

There have been various pieces of legislation introduced on the topic as Private Member’s Bills, none of which have succeeded, most of which have not even come to a vote. The most recent was introduced by Bill Shorten, Leader of the Opposition, in the form of the Marriage Amendment (Marriage Equality) Bill 2015 (introduced on 1 June 2015).

From the point of view of religious freedom, the latest Bill does at least make a gesture in that direction by providing, in Schedule 1 clauses 5 & 6, an amendment to s 47 of the Marriage Act 1961 which aims to make it clear that a minister of religion may not be obliged (by the Marriage Act or any other Act such as a law prohibiting sexual orientation discrimination) to solemnise a same sex marriage. But this minimal protection does not go very far in dealing with the sort of issues that are noted by the dissenters in Obergefell  and have become more apparent in recent years: the questions as to whether ordinary believers may be required to compromise their principles by providing support for, and celebration of, same sex weddings. (See my previous posts on some of the “wedding industry” cases, here and here.) Other questions include whether religious institutions generally will be allowed to continue to operate in the public sphere if their view of the morality of homosexual conduct is so contradictory to the new “sexual orthodoxy” which would be represented by Parliament granting the status of “marriage” to same sex couples.

Will the decision of the US Supreme Court have an impact on the law of Australia? Not directly, but the decision (like the recent referendum in Ireland) may have the pragmatic effect of further persuading some members of Parliament that the “tide of history” is sweeping toward same sex marriage, and they should jump on their boards. There is also an interesting comparison between the logic of the majority in Obergefell  and the reasoning of the High Court of Australia in Cth v ACT noted above. In the High Court the court (in a move I have critiqued in my previously noted paper) held that the Constitutional head of power to legislate on “marriage” includes the power to recognise same sex marriage, and part of their logic was that “incidental” features of marriage had changed over the years. Similarly, in Obergefell, Kennedy J for the majority argues that marriage has “evolved over time” (slip op, at 6) because previous features such as the law of coverture have dropped away.

In my paper on the Cth v ACT decision I note at p 8 that the High Court settles on a “core” meaning of the term which manages to include both polygamy and same sex relationships as part of a shifting meaning. But the question remains, both in Australia and the US, as to how one decides what is part of the “core” meaning of the term, and what is an inessential accident? And, one might add, not only “how” does one decide, but “who” decides? In the US the minority’s critique of the legislative-like move made by the majority in Obergefell is very convincing. In Australia we may at least have the matter decided by a Parliamentary body. But in my own view (and I think there is also a plausible legal argument to this effect as well as good policy reasons), such a fundamental change to a foundational social institution should really be settled by agreement of the people as a whole, rather  than by the shifting forces of politics in Parliament.

Even if a referendum were held, of course, I would personally oppose such a change. But at least a referendum would have the benefit of allowing the extent of community support for the change to be properly assessed, and for its supporters to seek to persuade its opponents of the rightness of their cause. Such an opportunity, as Roberts CJ tellingly points out in his decision, has now been lost after the majority ruling in Obergefell:

Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause.

neilfoster

Religious Freedom and Balancing Clauses in Discrimination Law

I have just returned from an excellent conference in Oxford on Magna Carta and Freedom of Religion or Belief, sponsored by the International Centre for Law and Religion Studies. While there I had the privilege of presenting a paper on the subject, “Freedom of Religion and Balancing Clauses in Discrimination Legislation”, which can be downloaded here for those who are interested. The paper provides an overview of some of the interactions between laws prohibiting unjustified discrimination, and the protection of religious freedom, where there may sometimes be a clash between these different important rights. When I have had a chance to digest it properly I will probably explore in more detail some of the implications for religious freedom of the recent US Supreme Court decision on same sex marriage, which intersects with some of the material in the paper.

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Freedom of religion in the nursery- homosexuality and the jilbab

Two recent UK decisions (oddly, both involving employment in nurseries) provide interesting examples of the operation of religious freedom principles in the workplace. In one, an evangelical Christian employee was found to have been discriminated against on the ground of her religion, by being dismissed after a conversation on homosexuality. In another, a Muslim applicant for a position claimed that she had been denied a job at a nursery because of her long robe, a “jilbab”, worn in accordance with her religious beliefs; but her claim of religious discrimination failed.

Discussion about homosexuality

In Mbuyi v Newpark Childcare (Shepherds Bush) Ltd (Case No 3300656/2014; ET, 21 May 2015) the claimant, Sarah Mbuyi, got into a conversation with a fellow worker, “LP”, about the Christian view of homosexuality. The details of the conversation were in dispute, but Employment Judge Broughton said, at para [46], that on the evidence that had been accepted by the employer (who claimed that their decision had been made solely on Ms Mbuyi’s evidence) the conversation involved LP asking questions about Ms Mbuyi’s church, mentioning that she (LP) was a lesbian and asking whether she would be welcomed at the church, and enquiring as to whether God would approve of her relationship. Ms Mbuyi conveyed that, while God accepts sinners, God was “not OK” with homosexual behaviour. LP was upset and complained to a supervisor.

On the basis of that conversation Ms Mbuyi was called to a disciplinary hearing without being told beforehand of the allegations, nor being warned that serious consequences might follow. She was asked whether, if she had been asked to read a book to the children in her care about a same sex family, she would do so; she responded that she would probably get a colleague to read it. She was then asked, without having used the word herself at all, “Do you think LP is wicked?” – see para [60]. Her response was “we are all wicked”; but this comment was later used as part of the evidence to suggest that she had been “harassing” her colleague. A few days later she was dismissed for “gross misconduct” on the basis of harassment, specifically (see [68]):

On Monday 6 January 2014 you entered into a conversation in the workplace with your colleague, LP, and the topic moved on to the issue of homosexuality… During that conversation you stated that homosexuality was a sin.

Ms Mbuyi then found other work, but took action against her former employer for discrimination based on harassment, direct discrimination on the grounds of religion or belief, and indirect discrimination on the same grounds. To summarise, her claim of harassment failed for the interesting reason that, when asked how she felt about the whole episode, she responded (see [132]) that “It was great. I could tell the gospel”! In other words, she said she did not feel bad about the incident.

However, her claim for discrimination was successful, not being dependent on how she felt about the episode. (And, of course, as a matter of precedent for the future, not all Christians dismissed in these circumstances would necessarily feel the same way!) The most obvious basis for her claim was that of “indirect discrimination”- that a requirement had been placed on her that, while not directly discriminatory, had a more serious impact on those with her religious belief than it would on others. This was indeed one of the grounds accepted by the Tribunal for her case succeeding. In terms of s 19 of the Equality Act 2010 (UK), a “provision, criterion and/or practice” (PCP) had been applied to her, that employees should not express any adverse views on homosexuality or describe it as a “sin”. (See para [101.1]) This PCP put “evangelical Christians” at a disadvantage in comparison to people in the community generally. Judge Broughton noted that art 9 of the European Convention on Human Rights protected religious freedom, and in particular that:

[106] The manifestation of religious belief may take the form of worship, teaching, practice and observance. Bearing witness in words and deeds is bound up with the existence of religious convictions (Kokkinakis v Greece, 25 May 1993, ECHR).

The Judge also noted that while an earlier approach in the UK suggested that an employee who found their religion clashing with their job, should just get another job (see [111]), this was no longer the approach favoured in the European Court of Human Rights since the decision in Eweida & Ors v UK [2013] (see the quote at [112]). Here the employer needed to consider whether it was “proportional” to a “legitimate aim” to have treated the claimant in this way. While the Judge accepted that a desire to have a “non-discriminatory” workplace was a legitimate aim, the way that the claimant had been treated in these circumstances was not a “proportionate” response- see the discussion at paras [187]-[193]. Features that led to this conclusion were that, if the issue of “discussions about homosexuality” was the real concern, then the colleague LP (who, on the accepted findings, had initiated the conversation) had not been disciplined; that no prior warning was given; that no opportunity was given for an undertaking to be offered that similar conversations would not be initiated by the claimant in the future.

While the above “indirect discrimination” analysis seems to be the most obvious way of analysing the circumstances, it is interesting to note that the Tribunal also found that there had been “direct” discrimination. Without going into all the findings, Judge Broughton found that the way the disciplinary hearing had been conducted involved a clear signal that there had been a pre-judgment made on the basis of a “stereotype”. Sufficient evidence was offered of “bad faith” (including matters such as putting the word “wicked” into the claimant’s mouth when she had not used it prior to the interview) to raise a presumption that she had been dismissed on account of her faith, and the employer had not produced sufficient evidence to rebut this finding (see the analysis of the “burden of proof” in direct discrimination cases in paras [115.3]-[115.4]).

To be frank, I have mentioned this second finding briefly because I suspect it is one that may be overturned on appeal, if there is one. The case does not really seem to rise, on my reading, to one of “direct” discrimination. But I think the decision on “indirect” discrimination seems justifiable. To dismiss an employee on the basis of a one-off conversation on a topic initiated by a fellow worker clearly seems disproportionate to legitimate aims of avoiding discrimination and harassment. While dismissal might be justified if there is a pattern of unwanted conversations foisted on others, as Judge Broughton said, here:

“there had been no warning and the dismissal was based primarily on an honest reply to a query”.

The length of the Jilbab

In the second case, Begum v Pedagogy Auras UK Ltd t/a Barney Lane Montessori [2015] UKEAT 0309_13_2205 (22 May 2015), the claimant, a Muslim woman, applied for a position at a nursery where other Muslim women were already employed. In the course of the interview, however, the employer noticed that the long traditional cloak, the “jilbab”, which she wore, extended to cover her feet completely. She said to the claimant that this might be a health and safety risk, as a tripping hazard, when moving around the nursery and picking up children, and asked her to consider wearing a shorter jilbab if she were to get the job. Evidence was that this was not a pretext of any sort, that health and safety issues of all sorts were regularly considered by the employer- see [12]. But while the interview concluded on a positive note, with the claimant to contact the employer about a starting date, she did not do so. The next they heard from her was a complaint of religious discrimination.

In this case the Employment Appeal Tribunal upheld the finding of the Employment Tribunal at first instance that there had been no discrimination on the basis of religion. The case involved, as did the Mbuyi case, the application of s 19 of the Equality Act 2010 (UK). The relevant PCP was that a long cloak covering the feet not be worn. It was accepted that the wearing of the jilbab was a manifestation of the claimaint’s religious beliefs, and the issue was whether the requirement that had been imposed was a proportionate means of achieving a legitimate aim- see para [67].

There was in fact some factual dispute about what had been said. The EAT accepted that at least a requirement had been imposed that any garment to be worn in the workplace not be a tripping hazard- see [73]. On that basis, this PCP “could not be said to be either wrong or unreasonable, and in our opinion is patently not so” – [74].

For further analysis of the decision, see comment at the Law and Religion UK blog by Frank Cramer.

Australian law

Would the result of these decisions have been the same in Australia? In my blog on the recent head-scarf case in the US I noted that there is no general law prohibiting religious discrimination which applies across Australia. However, in a jurisdiction like Victoria, where there is such a law, it seems to me that these decisions should have been decided the same way. As noted there, the issue under s 9 of the Equal Opportunity Act 2010 (Vic) s 9 would be whether a “requirement, condition or practice” (like the PCP spoken of in the UK cases) put the plaintiff at a disadvantage on the basis of religion or belief, and whether it was “reasonable”.

It seems to me that the Begum case would be reasonably straightforward, as it was in the end in the UK. To impose a requirement in the interests of safety, especially where the requirement was not “no religious dress” but simply “a slightly shorter robe”, would probably be held to be reasonable. (In Victoria, s 75 of the Act means that behaviour is not discriminatory if it is “necessary” to do something to comply with other legislation; and it might be argued that a safety requirement was mandated by the Victorian Occupational Health and Safety Act 2004.)

Arguably the outcome of a case like the Mbuyi one would be more uncertain. It seems to me, though, that a good argument could be made that in circumstances identical to this decision it would not be “reasonable” to impose a requirement that “no conversations expressing a Biblical view of homosexuality be had on pain of instant dismissal”. Determination of what is “reasonable” would be made having regard to s 9(3) of the EO Act:

(3)     Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including the following—

(a)     the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the requirement, condition or practice;

(b)     whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the requirement, condition or practice;

(c)             the cost of any alternative requirement, condition or practice;

(d)     the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice;

(e)     whether reasonable adjustments or reasonable accommodation could be made to the requirement, condition or practice to reduce the disadvantage caused, including the availability of     an alternative requirement, condition or practice that would achieve the result sought by the person imposing, or proposing to impose, the requirement, condition or practice but would result in less disadvantage.

Here the “censorship” of conversations on topics on which employees may wish to converse would be a serious disadvantage, arguably disproportionate to the result of seeing that employees were not harassed. Introduction of principles encouraging respect for other points of view, and even clear guidelines about not pursuing topics of conversation where one party indicates that they do not wish to discuss them, are clearly a better response. The costs of having a conversation about these issues for the future would be minimal, and impose much “less disadvantage” than a blanket prohibition on conversations. There are also other important issues at stake in terms of the value of free speech and open discussion on important issues among employees without a fear that retribution will follow a request to talk about a topic initiated by a colleague. It is to be hoped that a spirit of open discussion about important issues will allow continued freedom of religion and belief in the workplace.

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Headscarves and Religious Freedom in the Fashion Industry

The United States Supreme Court has just handed down a very interesting religious freedom decision in Equal Employment Opportunity Commission v Abercrombie & Fitch Stores, Inc (No 14-86, June 1 2015, 575 US ____ (2015)). The case involved a Muslim lady, Ms Samantha Elauf, who had applied for a job in a store run by high end fashion label Abercrombie & Fitch (A&F). In the interview she wore her head scarf, which she usually wore in line with her religious beliefs, but was not specifically asked about this. A&F maintained a “Look” policy applying to staff working in their stores which included a “no headgear” requirement. The person who conducted the interview told her supervisor that she thought Ms Elauf would be suitable, but noted that she seemed to wear a scarf for religious reasons. The supervisor directed that she not be hired. The Equal Employment Opportunity Commission (EEOC) sued A&F on behalf of Ms Elauf, alleging unlawful religious discrimination.

The Law

The case, then, was not one which directly involved the First Amendment to the US Constitution, or the Religious Freedom Restoration Acts which have recently generated such controversy. The legislation involved was Title VII of the Civil Rights Act of 1964, 78 Stat 253, which relevantly makes it unlawful for an employer:

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race,color, religion, sex, or national origin. (42 U. S. C. §2000e–2(a).; emphasis added)

Another crucial part of the legislation for the Supreme Court’s decision is the definition of “religion”. The majority decision noted (at 3):

The word “religion” is defined to “includ[e] all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to” a “religious observance or practice without undue hardship on the conduct of the employer’s business.” §2000e(j).

It is somewhat unusual to incorporate a substantive provision about “reasonable accommodation” and “undue hardship” into the definition of “religion” (Justice Thomas in his dissent here, at 9, notes a previous case that said this inclusion was “somewhat awkward”, which I think is putting it mildly). This awkward structure led to some of the disagreements within the Supreme Court.

The Decision of the Court

The outcome of the decision is that Supreme Court, by an 8-1 majority, over-ruled the decision of the lower, Tenth Circuit, appeal court that A&F could not be held liable because Ms Elauf had not explicitly requested a religious accommodation. However, even within the 8 Justices who said that the Tenth Circuit had got it wrong, and needed to reconsider, there is an important difference of opinion. A sizeable majority of 7 Justices joined in an opinion written by Scalia J in which his Honour held that A&F’s knowledge that Ms Elauf wanted to wear the scarf for religious reasons was irrelevant- that for an action of an employer to be directly discriminatory on the ground of religion (under a “disparate treatment” or “intentional discrimination” ground, contained in Title VII, §2000(e)-2(a)(1)) all that has to be shown is that a “suspected” requirement for “accommodation” (that is, some adjustment of existing rules, such as the “no headgear” policy here) on religious grounds was a “motivating factor” in the decision to subject the employee to a disadvantage. See the following comments from pp 3 and 5 of the majority opinion:

[A]n applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision…

an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.  Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.

On the other hand, Alito J, concurring in the result, disagreed with the majority on the question of “knowledge”. His Honour held that a requirement that the employer know that religious reasons required an “accommodation” should be implied in the terms of the legislation. However, since there was sufficient evidence in the agreed facts to lead to a finding of such knowledge, he thought that the appeal ought to succeed. Like the majority, though, he agreed that there was no need to prove that an actual request for such accommodation was made by the employee.

With respect, the concurring decision is fairly persuasive. As Alito J notes, it seems a very odd reading of the statute to say that an employer who had no idea at all that a religious reason was involved, could be held to have breached the statute, the aim of which seems to be to prohibit “intentional” discrimination (though that word is not used). The majority avoids this outcome by its comment suggesting that a “suspicion” of a religious reason would be enough; but to be frank this word really pops up from nowhere, it is not in the legislation, any more than a “knowledge” requirement is. But something of the sort seems needed. In a footnote, p 6 fn 3, the majority say they don’t need to choose between a “suspicion” and a “knowledge” criterion. But I think Alito J seems to be correct to say it needs spelling out to make the legislation operate sensibly- see p 4 of his decision. (As Thomas J says at 4-5 of his judgement, the majority decision “leaves the door open” to argue a “strict liability” which would not even depend on suspicion, by refusing to resolve the issue.)

In dissent, Thomas J holds that the majority are wrong to characterise this case as one of “direct” discrimination, “disparate treatment”. Instead, it should be regarded as a classic example of “indirect”, or “disparate impact”, discrimination, and resolved under the principles developed in those cases. However, his Honour does not then go on to apply the “indirect” provision to this case, being content to say that he would affirm the judgment of the Tenth Circuit decision.

Comment

I agree with the outcome of this case. I will demonstrate why shortly, by referring to Australian law. But it has to be said that it certainly leaves some uncertainty in the area of protection from religious discrimination. The majority judgment does seem to open up the possibility of some odd decisions, where an employer may refuse to accommodate a religious belief on the basis of a “suspicion” and be found guilty of direct discrimination under Title VII. This seems a very high bar. I think, while I am not an expert in US law, that the explanation can partly be found in the different approaches of Scalia J (author of the majority judgment) and Alito J to the question of statutory interpretation. Partly as a result of the many decisions that the US Supreme Court has to make on the meaning of that country’s Constitution, and also for other reasons, Scalia J is a fierce proponent of the view that a statute has to be interpreted by strict reference to the words chosen by the law-makers, with possible reference to dictionaries of the English language available at the time the legislation was enacted, but excluding any consideration of what was said in Congress or what a judge believes the “policy” of the statute is. Hence his Honour’s sharp comments on p 5 that the court should not “add words to the law to produce what is thought to be a desirable result”.

On the other hand, Alito J adopts the interpretation he does, requiring “knowledge” of a religious belief needing accommodation, because, as he says at p 4 of his judgment, “This interpretation makes sense of the statutory provisions”. With respect, I think his Honour is correct; and interestingly, despite Scalia J’s refusal at one point to “add words”, the word “suspicion” pops up in the majority judgment at various points with no direct statutory warrant. (Partly it is used because the legislation does refer to “motive”, see majority p 6 fn 3; but since this word needs explanation the court has to adopt some other criteria.)

In the end it has to be said that this case, which should be reasonably straightforward, is complex because of the “awkward” way that the definition of “religion”, noted above, is drafted. The question of whether a “reasonable accommodation” is possible is logically nothing at all to do with whether the employee has a religious belief or practice; that is an issue which needs to be dealt with, but not as part of the definition of “religion”. In addition,  by incorporating “all aspects of religious observance and practice” into the definition of “religion”, the way is open for the confusion evident here. Scalia J seems correct if the statute is to be read literally: if “religion” includes any practice that might be connected with religion, then making an employment decision on the basis of, say, an employee’s desire not to work on the Sabbath is itself to discriminate directly on the basis of “religion”, even if the employer could not and does not know that the employee is Jewish. But as Alito J says, it makes no sense for the statute to operate that way.

Under Australian law?

How would this case have been decided under Australian law? Briefly, it would not have even arisen under the law of the Commonwealth or NSW, as those jurisdictions have no law prohibiting discrimination on the basis of religion. (Even the provisions of s 351 of the Fair Work Act 2009 (Cth) which forbid discrimination against a “prospective employee” on the basis of religion, would not seem to operate if the events occurred in NSW, as under s 351(2), the prohibition “does not apply to action that is: (a)  not unlawful under any anti-discrimination law in force in the place where the action is taken.”)

However, in a State that does contain such laws, then under the usual Australian approach this would be an example of “indirect”, not “direct”, discrimination (as Thomas J in dissent argued should have been the case under Title VII.) So in Victoria, for example, under the Equal Opportunity Act 2010, the “attribute” of “religious belief or activity” is one of the protected attributes- see s 6(n). Under s 9(1) it is “indirect discrimination” where:

    (1)    …a person imposes, or proposes to impose, a requirement, condition or practice—

(a)     that has, or is likely to have, the effect of disadvantaging persons with an attribute; and

(b)     that is not reasonable.

Under s 16 an employer must not “discriminate” on the basis of protected attributes when determining to offer jobs. Under s 7 this word includes “indirect” discrimination. Here it seems clear that a requirement that a worker not have headgear would be a condition that will have the effect of disadvantaging those who have the attribute of a traditional Muslim belief that women ought to have their head covered. The court would then need to consider whether this requirement was “reasonable” or not taking into account a range of matters noted in s 9(3), including whether some “reasonable accommodation” is possible. It seems likely that a court would hold that a requirement merely based on a desire for a “Look” might not be sufficiently important to involve rejecting employment to a Muslim woman. That at least is where the discussion would take place, which seems the right approach.

Protection of the freedom of religion is an important issue. It is to be regretted, in my view, that there is no such general provision in Commonwealth and NSW law. This case illustrates that the law can act to protect the rights of religious minorities, and it would be good if the law of Australia did so more clearly.

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Religious Freedom in Australia

I was invited to speak to the J Rueben Clark Law Society annual conference on Friday May 29, and gave a paper on Religious Freedom in Australia. (I am not a member of the Society but happy to share in the work of supporting religious freedom with its members.) The paper covers something of the ground I covered in a previous blog post on this area, but in more detail and with footnotes! After the paper one member of the audience noted that I had omitted to mention s 46 of the Tasmanian Constitution Act 1934 which is the only provision for specific religious freedom protection in Australia in a State Constitution. Worth keeping in mind though so far no court has ever had occasion to consider what it means. Those who are interested in a detailed analysis of the somewhat patchwork system for religious freedom protection in Australia at the moment may find the paper of interest.

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Sesame Street and the Gay Cake

In a previous post I mentioned a series of cases raising the question as to whether Christian business owners who declined to provide their services to support same sex weddings, were guilty of sexual orientation discrimination. (Answer so far: Yes.) In that post I mentioned a case involving bakers in Northern Ireland which at the time had not come before the courts. The decision in that case, Lee v Ashers Baking Co Ltd [2015] NICty 2 (19 May 2015) has now been handed down.

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Mr Lee is a member of the “Queerspace” group in Northern Ireland, which had been campaigning for legislative change recognising same sex marriage there (Northern Ireland, while a part of Great Britain, has its own legislature and has not followed the lead of England and adopted same sex marriage.) Shortly after the third debate on the issue in the Assembly, which had rejected proposals for change, he went into the Ashers cake shop and ordered a cake to use at an event marking the celebration of gay rights. (Interestingly the judge describes the event at [6] as “to mark the political momentum towards legislation for same-sex marriage”, an interesting use of the word “momentum” as all the votes that had been held up to that point had rejected the proposal; indeed, since the events at issue in this case there has been a fourth vote on the matter which has also failed.)

He asked for the cake to be made featuring a picture of “Bert and Ernie”, two popular muppets from the children’s show Sesame Street (despite the fact that the producers of the show have previously clearly indicated that Bert and Ernie are not romantically involved!) Ignoring possible copyright issues, the bakers declined to make the cake on the more important grounds that they were Christians who took the Biblical views of appropriate sexual behaviour seriously, and that they were being asked to devote their cake-making skills to a message with which they fundamentally disagreed. With the apparent support of the local human rights organisation, Mr Lee took an action for discrimination against the bakers, alleging both sexual orientation discrimination and also the somewhat unusual category of “political viewpoint” discrimination.

Since this blog is about “law and religion” rather than politics (!), I won’t spend much time on this second ground. I gather that this ground is not very common as a basis for discrimination, and was introduced in Northern Ireland mainly as a result of the very deep-seated resentments between the main political forces in that area after many years of violence and hatred. The difficulty of a prohibition of discrimination on political viewpoint grounds, of course, is that it opens up the question of whether people are free to make decisions on the basis that they disagree with someone’s politics or not.

The UK Human Rights blog, experts in this area, comment as follows on this aspect of the case:

It seems Ashers Bakery were inevitably going to lose this case, on the basis that they directly discriminated on grounds of political opinion. This form of anti-discrimination law is unique to Northern Ireland and designed to deal with the particular problem of someone being treated unfavourably because of their Unionist or Nationalist views. However, the Order is drafted widely enough that it included Mr Lee’s campaigning for same-sex marriage, so the decision that the refusal to bake the cake was discrimination on grounds of political opinion must be correct. This does have the strange effect that, whilst the Northern Ireland Assembly have repeatedly refused to legalise same-sex marriage, it is nevertheless illegal to refuse to bake a cake in support of it!

To turn to the other alleged ground of discrimination, essentially the claim here is similar to that made in the other “wedding industry” cases noted previously, that by refusing to support same sex marriage as an institution, the bakers have treated the customer less favourably than others, and hence have discriminated on the grounds of sexual orientation. District Judge Brownlie said:

[36] I [accept] the Plaintiff’s submission that same-sex marriage is or should be regarded as a union between persons having a sexual orientation and that if a person refused to provide a service on that ground then they were discriminating on grounds of sexual orientation.

With respect, her Honour really does not, in my view, give proper weight to the argument that the bakers, as they claimed, were not discriminating against Mr Lee as a person, but were declining to give their support to the message he wanted to convey, which was, literally, “Support Gay Marriage”. But her Honour’s response was that this was not important:

 [40] Additionally, I do not accept the Defendants submissions that what the Plaintiff wanted them to do would require them to promote and support gay marriage which is contrary to their deeply held religious beliefs. Much as I acknowledge fully their religious belief is that gay marriage is sinful, they are in a business supplying services to all, however constituted. The law requires them to do just that, subject to the graphic being lawful and not contrary to the terms and conditions of the company. There appears to have been no consideration given to any other measures such as the non – Christian decorator icing the cake or, alternatively, sub-contracting this order.

For reasons which remain obscure, even on multiple readings, her Honour said that the relevant “comparator” (for the purposes of determining whether sexual orientation discrimination had taken place) was not to consider the situation of a heterosexual person who wanted to order the same cake, but instead to compare the refusal to supply the cake here with how they would have responded to “a heterosexual person placing an order for a cake with the graphics either “Support Marriage” or “Support Heterosexual Marriage””- see [42]. The only explanation that seems possible for this comparison seems to be supplied by the very telling comment her Honour goes on to make:

I regard the criterion to be “support for same sex marriage” which is indissociable from sexual orientation. There is also an exact correspondence between the advantage conferred and the disadvantage imposed in supporting one and not the other.

In Bressol v Gouvernement de la Commaunite Francaise Case [2010] ECR 1-2735, para 56, [2010] 3CMLR 559:

“I take there to be direct discrimination when the category of those receiving a certain advantage and the category of those suffering a correlative disadvantage coincide exactly with the respective categories of persons distinguished only by applying a prohibited classification”.[43] My finding is that the Defendants cancelled this order as they oppose same sex marriage for the reason that they regard it as sinful and contrary to their genuinely held religious beliefs. Same sex marriage is inextricably linked to sexual relations between same sex couples which is a union of persons having a particular sexual orientation. The Plaintiff did not share the particular religious and political opinion which confines marriage to heterosexual orientation. (emphasis added)

The comment can only be read as saying that discrimination here is unlawful because the class of persons who support same sex marriage is identical to the class of persons who are of homosexual sexual orientation. The problem is, of course, is that this comment is palpably false. Again, let me quote the UK Human Rights blog, a source which has never been known to be overly given to conservative views:

[T]he judge’s findings in relation to discrimination on grounds of sexual orientation do not make much sense. One key misstep appears to be that she conflates support for same-sex marriage with a homosexual orientation, when they are clearly different things. Many people who are not gay (including the Prime Minister) support same-sex marriage. Some people who are gay (including Rupert Everett and Dolce and Gabbana) oppose same-sex marriage.

To the list of people who are gay and do not support same sex marriage we may add some homosexual commentators in the Republic of Ireland in the lead-up to the recent referendum in that country.

Still, having found that anyone who opposes same sex marriage must be opposed to homosexual persons (the implications of this equation), it is not surprising that the Judge found that the bakers had discriminated on the basis of sexual orientation.

Assuming that this was the result required by the regulations, her Honour went on, as she was required to, to consider whether the regulations then were inconsistent with the principles of the European Convention on Human Rights. In particular article 9 of the ECHR requires recognition of freedom of religion, subject to limitations which are prescribed by law, intended to achieve a legitimate objective, and ‘necessary in a democratic society’ – see [74]. The regulations clearly qualified as law, and clearly the removal of unjust discrimination against homosexual persons is a legitimate objective. But was it “necessary” to do so by requiring religious believers to support a message completely at odds with their fundamental beliefs?

Indeed, her Honour was taken to a Canadian case where an Ontario court had held that a printer who was required to undertake printing for a same sex support group, would not be required to print material which was in direct conflict with his core religious beliefs. The decision in Brockie v Ontario Human Rights Commission [2002] 22 DLR (4th) 174 was clearly relevant. (Interestingly, Brockie was cited with approval by Redlich J in dissent in the Australian decision in Christian Youth Camps Limited & Ors v Cobaw Community Health Services Limited & Ors [2014] VSCA 75 (16 April 2014) at, e.g., para [544].For comment on this case, which raises many of the same issues as being discussed here, see my earlier paper.)

However, Brockie  was rejected as being applicable here- see [90]. Partly this came back to the view that the bakers had not been required to “support, promote or endorse any viewpoint”- see [95]. With respect, this again seems wrong. While can perhaps understand a view that says that providing a wedding cake is not to “endorse” the marriage (although even this seems dubious), it needs to be remembered here that this was not a wedding cake. The sole purpose of the cake as requested was to bear a message of support for the institution of “gay marriage”. While of course it would also be eaten, there is no doubt that Ashers would have been more than happy to provide a cake simply to be eaten. But what they were asked to do, contrary to their fundamental beliefs, was to create an artistic creation carrying this message. There was no attempt here to undertake a process of “balancing”, or to consider the harm of acting against conscience with the harm of having to go down the road to another baker.

It may be recalled that other courts have been willing to find differently in similar cases. I have in previous posts referred to an Australian decision holding that it is possible to distinguish between sexual orientation on the one hand, and behaviour motivated by that orientation on the other; and to a recent US decision on almost identical facts to the Asher case (save that a T-shirt is not a cake) where the court ruled that religious freedom protection applied when asked to support a homosexual lifestyle. It is to be hoped that if the decision in Lee v Ashers goes on appeal some of these other matters may lead to a different decision.

It may be thought that decisions are simply minor issues. Clearly they are not minor for those who have been caught up in them, either facing fines or large amounts in legal fees to defend their right to not only live, but to conduct business in accordance with their deepest life commitments. And in a broader sense they raise important questions about whether those who differ from the current moral orthodoxy will be allowed to operate in the public sphere at all. As a recent press report notes, in some cases even where a service is provided, the mere fact that the business operator simply does not approve of the wedding ceremony will be enough to generate outrage. The law ought to be clear- in a plural society, we have to accept that some others in the community will disagree with our lifestyle choices, and where they do us no other harm, to allow them to do so.

neilfoster

Update – Schools, Scripture, Banning of Books and Sexual Orthodoxy

My previous post mentioned that some books used in Special Religious Education (SRE) in NSW had been summarily banned by the Department of Education and Communities, apparently on the grounds that they conveyed classical Christian teaching about sexual morality. In that post I said:

It is to be hoped that on review the Department will realise both that the way this was done is entirely unacceptable, and also that the content of the books concerned is not as harmful as it has been alleged to be.

One of those hopes has been realised, but the other has not. On 19 May 2015 the Minister for Education wrote to the Anglican Archbishop of Sydney to advise that there was no longer any ban on “two books, and their accompanying student handbooks, namely, You: An Introduction by Dr Michael Jensen and A Sneaking Suspicion by Dr John Dickson”. The minister confirmed that the third book mentioned in the previous Departmental email, Dr Patricia Weerakoon’s Teen Sex by the Book was not on the list of reading for SRE. (The letter indicated that this book may have been used in some government schools outside Sydney; I have seen no independent confirmation that this is so, but of course it is not impossible.)

The process issue

My first hope was that the Department would realise that the process that was followed in this “book banning” was entirely unacceptable. The Minister in his letter “regrets” the lack of prior consultation and assures the Archbishop that “if similar concerns are raised in the future it will immediately discuss the matter with SRE providers as a first step”. That is something, although it would have been perhaps more appropriate if there had been a frank acknowledgement that this was clearly wrong. As it is arguable that what was done was completely outside the lawful authority of the Department mere “regret” seems fairly weak.

The content issues

My second hope, that the Department would clearly resile from the view that these books were harmful in some way, has not been fulfilled at all. The closest we come to understanding why on earth these books were a concern is as follows:

the original memorandum was issued by the DEC on advice that there was a potential risk to students in the delivery of this material, if not taught sensitively and in an age appropriate manner.

This language seems to conceal more than it reveals. What sort of “risk”?

While so far the Department has not seen fit to enlighten us about the risk, some hints may be obtained from a post by one of those who strongly supported the ban. A member of the Greens political party who supported the original ban has posted a document which, if it is not the very one that was used to persuade the Department, seems likely to be similar. The complaints about the material include that they contain “negative views about abortion”, “outdated and sexist female headship views” (I assume the intention was to refer to Biblical views about male headship), and of course that dangerous proposition that sexual relationships are meant to be reserved for marriage:

The lessons reinforce that love is only between a man and woman and that men and women are designed to perfectly complement each other. This sends a message that anything other than a heterosexual relationship within the bounds of marriage is wrong.

The document also includes without comment an article entitled “Thank God for the Gift of Cancer”, which was intended to be used as a discussion starter with senior students. No doubt  it is challenging to read, but equally there are no doubt many books accessible in high school libraries dealing with illness and death. There are then comments labelled as “homophobic” such as the suggestion that the Gay and Lesbian Mardi Gras is “promoting sexual selfishness, triviality and unfaithfulness”.

There is then the following sequence of non sequiturs:

This lesson is designed to instruct the student that sex outside marriage is wrong according to God, teaches as fact that extramarital sex is bad and sex within marriage is sublime.

Purity culture is one in which young people – particularly young girls and young women – are expected to remain sexually chaste until marriage.

Abstinence only sex education is linked to higher teen pregnancy rates and higher STD rates.

The first statement seems unobjectionable as a summary of Christian morality; the second defines a modern term “purity culture”, which as far as can be seen is not used in the book in question; and the third makes the massive (and totally unjustified) leap to suggesting that the book somehow is suggesting a program of “abstinence only sex education”. Whatever the detriments of the latter as a general way of educating teenagers about sex, that is not what this book is about. It is not a “sex education” book; it is a book which discusses aspects of life from a Christian perspective, and accurately reports the Biblical view of sexual morality among a large number of other topics.

Finally, the summary somehow turns a passing allusion to Genesis 34 and the incident of the rape of Dinah into a comment “equating rape with sexual promiscuity and shame”. Just to be clear, the chapter concerned records a dreadful incident of rape, but does not in any way suggest it was produced by Dinah’s “sexual promiscuity”.

I have noted these allegations in some detail in order to illuminate the chasm that seems to be emerging between some views of modern Western morality and traditional Christian beliefs. The books being attacked here are not at the fringes of Christianity, they are squarely in the mainstream of Biblical thought. The views being attacked are central to the Christian faith. Yet they now being characterised as “harmful”.

Even if many now think those views are wrong, why is it necessary to prevent them being taught by representatives of a religious group which has legislative permission to provide religious education, to young people whose parents are willing for them to have such education? Values of both freedom of religion and freedom of speech count in favour of an ongoing dialogue on these issues, instead of an attitude which enforces one “acceptable” line and treats young people, who are exposed to a huge range of competing views through the media and the internet, as too fragile to be told that the Bible’s teachings differ from those of their general community.

How many remember that in the late 60’s and early 70’s Australia was shaken by controversy as a radical book for students, “The Little Red Schoolbook“, was distributed by left wing activists to high school students? It presented a view of sexual behaviour which was at odds with the majority community consensus. But many on the left loudly supported the circulation of the book, in line with principles of free speech and free thought. The tables seem to have almost completely turned. Views of “free love” and sexual liberation outside marriage are now the current orthodoxy, while books that support chastity and sex within long-term committed marriage are now the ones under attack. Students are entitled to hear points of view at odds with the majority culture. Rather than the heavy-handed enforcement of majoritarian sexual orthodoxy, why not allow other views to be heard and evaluated?

Australia is a country with a wide range of views on religious and other matters. It doesn’t seem unreasonable for religious groups to be able to teach the children of those who want them taught, the views of those religions.

neilfoster

Schools, Scripture and Book Banning in NSW

There has been quite some concern in Christian circles in my home State of NSW over the last few days, over bureaucratic action to “ban” some books from being used in Special Religious Education classes. While events are still unfolding (the relevant Department has so far made no general public comment on the matter, which seems to be promised for the coming week), it seems worthwhile to set some of this dispute in legal context.

Schools and the Separation of Church and State in Australia

Perhaps it is best to start off with the background in NSW, and in Australia, on the question of the relationship between “church and state”. That is because many even in Australia have the impression that all Western countries have erected a high “wall of separation” between the two spheres, getting that impression from US TV shows and comments from the US on the internet.

The fact is that even in the United States the theory that there is this high wall (said to be mandated by the First Amendment to the US Constitution, which says that “Congress shall make no law respecting an establishment of religion”) has been seriously challenged by many scholars. Still, the effect of the “establishment clause” in the US has been felt in decisions holding that there can be no public prayer offered in public schools, for example.

But, while s 116 of the Commonwealth of Australia Constitution seems at first glance to be similar, there are a number of important differences between the way that the Australian provision has been interpreted by the courts here, and the reading of the US First Amendment offered in that country.

Section 116 provides, on this issue:

The Commonwealth shall not make any law for establishing any religion..

The history of interpretation of the provision makes it clear that, unlike the US, this is not a prohibition on State, as opposed to Federal, action (so in theory a State is free to even “establish” its own religion, although in fact such a decision would not be politically acceptable today.) In addition, the important decision of the High Court of Australia in Attorney-General (Vic) ex rel Black v Commonwealth (1981) 146 CLR 559 (sometimes known as the DOGS case for the group which sponsored the challenge, “Defence of Government Schools”) held that s 116, far from mandating a “wall of separation”, was not breached by direct Commonwealth funding of Catholic schools.

The interpretation given to s 116 was very narrow. Relying on the phrase “for establishing”, the majority of the High Court held that the prohibition would effectively only be breached by a law the very purpose of which was to set up something like a “state church”. Hence there would be no breach of the establishment clause by a moderate engagement with, and even-handed support for, religion in schools. This has been regarded as the settled meaning of the term for many years, which is presumably why, for example, when the “school chaplaincy” scheme was challenged in the High Court over the last few years, those making the  challenge did not even attempt to argue that the “establishment” clause was breached by the Government providing funding to private religious organisations to allow the placement of “chaplains” in Government schools. (The cases challenging the scheme, Williams v Commonwealth [2012] HCA 23, (2012) 86 ALJR 713 and Williams v Commonwealth of Australia (No 2) [2014] HCA 23, were successful in that they led to the Court declaring the schemes invalid as then constituted. But the invalidity was on the grounds of the direct funding arrangements that had been adopted, not on a breach of s 116, despite some inaccurate press reports of the decisions.)

(It is of course possible that in the future the High Court might give a slightly broader reading of Australia’s “establishment clause”. Those with an interest in the academic issues can see some very interesting analysis and suggestions along these lines in some recent articles:

  • Barker, Renae “A Critical Analysis of Religious Aspects of the Australian Chaplaincy Cases” (2015) 4 Ox. J Law Religion 26-53
  • Beck, Luke “Dead Dogs? Towards a Less Restrictive Interpretation of the Establishment Clause: Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2)” (April 18, 2013), available at SSRN: http://ssrn.com/abstract=2253260
  • Beck, Luke “THE ESTABLISHMENT CLAUSE OF THE AUSTRALIAN CONSTITUTION: THREE PROPOSITIONS AND A CASE STUDY” (2014) 35 Adelaide Law Review 225-250
  • Mortensen, R “The Establishment Clause: A Search for Meaning” (2014) 33 Uni of Qld Law Jnl 109-129

But unless and until some change happens, the view summarised here is the current interpretation.)

Banning books in “Scripture” classes in schools

So we come to “Scripture” in schools, the popular name for what is formally designated “Special Religious Education” or “SRE”. For some years the law of NSW has required that a small amount of time be set aside each week in public schools for SRE. It is a voluntary system, in that parents are free to remove their children from the classes if they so choose. It is not meant to be general information about the concept of religion and “world religions”- that is “General Religious Education”, to be provided by the ordinary class-room teacher. (Under s 30 of the Education Act 1990 that is classified as part of the “secular education” which is to be provided by the schools.) But s 32 of the Act allows representatives of various religions to come into the schools and provide religious instruction from their own faith perspective, to children whose parents are willing to allow this.

32 Special religious education

(1) In every government school, time is to be allowed for the religious education of children of any religious persuasion, but the total number of hours so allowed in a year is not to exceed, for each child, the number of school weeks in the year.

(2) The religious education to be given to children of any religious persuasion is to be given by a member of the clergy or other religious teacher of that persuasion authorised by the religious body to which the member of the clergy or other religious teacher belongs.

(3) The religious education to be given is in every case to be the religious education authorised by the religious body to which the member of the clergy or other religious teacher belongs.

(4) The times at which religious education is to be given to children of a particular religious persuasion are to be fixed by agreement between the principal of the school and the local member of the clergy or other religious teacher of that persuasion.

(5) Children attending a religious education class are to be separated from other children at the school while the class is held.

(6) If the relevant member of the clergy or other religious teacher fails to attend the school at the appointed time, the children are to be appropriately cared for at the school during the period set aside for religious education.

In general, SRE has been an accepted part of life in NSW schools for many years. But recently there have been voices expressing opposition. One development saw complaints by parents who withdrew children from SRE classes, that they were not doing useful work. The suggestion was made that there should be an alternative class offered in Ethics, from a non-religious perspective. This has been happening, authorised by s 33A of the Act, where it is “reasonably practicable” to offer the alternative class. (This will usually depend on there being motivated and qualified local volunteers willing to take the classes.)

But a more recent development has seen a campaign to remove SRE from public schools altogether. It seems these latest events are part of this campaign.

A press report of Wednesday May 6 suggested that a textbook being used in SRE promoted the messages of “sexual abstinence outside a “lifelong relationship” and the doctrine of male headship and female submission.” That a Christian organisation should want to present standard features of Christian doctrine which have arguably been there in the Bible for millennia seems to have been a surprise to some of those quoted. The book which was most strongly challenged was one called Teen Sex by the Book, produced by Patricia Weerakoon, a highly qualified Christian sex expert and lecturer on the topic at the University of Sydney. This book was not, in fact, actually on the official reading list for SRE classes. It was published by the same organisation that published the SRE materials, but it was not an SRE text. Yet the article misleadingly suggested, if it did not quite state, that it was part of the formal curriculum. A representative of a lobby group was quoted:

“We call on the (DEC) to remove all of these materials from schools immediately and conduct a parliamentary review into how this damaging curriculum was able to become available to SRE teachers,” she said.

Few who read the article would have predicted how alarmingly quickly this call was to be heeded by an apparently compliant Department of Education and Communities, the body responsible for schools. On Thursday May 7 it was reported that SRE teachers arriving at schools to teach their classes were abruptly informed by local school principals that the Department had sent around a warning about three books: one of them the Teen Sex book, and two others: You, by Michael Jensen, and A Sneaking Suspicion, by John Dickson. Both of these authors are currently serving Anglican rectors but also well-known Christian authors. (Actually there was some confusion as to whether the books themselves were to be “banned”, or the study guides which accompanied the books, but the intention seems to have been to ban both.) It is still as I write not precisely clear why the two latter books were targeted, although the most obvious reason is that they formed the basis for some of the courses taught to high school students, and generally supported Christian morality on sex.

This sudden censorship was, frankly, astonishing. As far as can be determined from the authors concerned, and from the body administering SRE on behalf of the Anglican church in Sydney, there had been no consultation or discussion on the matter. An extract from one of the emails received by the schools says that:

SRE-directive

The letter then continued:

SRE-directive2

It seems likely that this action was contrary to the way that the SRE system was meant to work. As noted above, s 32(3) of the Act specifies that it is the religious education provider which is to determine the content of what is offered in these classes. The Department’s internal policy says:

NSW DEC Religious Education Policy

§1.3 Curriculum for general religious education is provided as part of the Board of Studies NSW syllabuses.
Curriculum for special religious education is developed and implemented by approved providers.

Another Departmental document indicates:

Responsibilities of providers

Lesson content

It is the responsibility of an approved provider to:
• authorise the materials and pedagogy used by special religious education teachers
• provide an annual assurance to the NSW Department of Education and Communities that authorised teachers are only using materials and pedagogy authorised by the provider
• make lesson content accessible on a website or at least provide a program outline and curriculum scope and sequence documents

In other words, the content of lessons and how they are taught are meant to be the responsibility of the SRE provider, not the Department! It can hardly be supposed that with all these responsibilities carefully set out, the intention of Parliament, or even of the Department, was to allow a single bureaucrat to decide without warning to “ban” the use of certain texts in response to a one-sided press report, with no consultation. Yet this seems to be what has happened.

It is to be hoped that on review the Department will realise both that the way this was done is entirely unacceptable, and also that the content of the books concerned is not as harmful as it has been alleged to be. While one can perhaps imagine that a prescribed text which urged, for example, believers to immediately wage war on, and kill, unbelievers, could be the subject of such urgent action, it beggars belief that matters of Christian morality which have been taught for millennia could overnight have become so immediately harmful that they had to be withdrawn without due process and opportunity for explanation.

Even if this odd decision is rescinded, the very fact that someone in the bureaucracy could contemplate that this was a lawful action says much about the change in perception of issues of morality in recent years. As I have already noted elsewhere, we have gone in a short space of time from the church and its teaching on appropriate sexual relationships being thought merely “old-fashioned”, to these views being painted by many as positively evil. Hopefully the very extreme action that was taken here will cause many in the community to reflect on the merits of these issues once again.

For further comments on these events, see here and and interview with one of the authors, here. I will aim to update this post if there are further developments.

neilfoster

Employment status of clergy

An important recent decision of the Court of Appeal in England and Wales, Sharpe v The Bishop of Worcester [2015] EWCA Civ 399 (30 April 2015) deals with the issue of the “employment status” of members of the clergy. Is a rector, or a priest, or a pastor, or an imam, an “employee”? If so, who exactly is their employer: the local congregation? the governing board of the congregation? a bishop? the local diocese? These are important issues which are mentioned in the case.The question may be important for a number of reasons: for example, for the rights of members of the clergy who believe they have been wrongly dismissed, or the rights of members of the public to take an action against the church or religious body, which may depend on the whether the cleric is an “employee” or not.

The answer offered in England will not be precisely the same as the answer in Australia, but there are many similarities. In this note I will deal with the situation of Christian ministers primarily, although the same issues can be raised in relation to other religions.

In most situations where the question of whether or not someone is an employee has to be resolved, the standard Australian common law tests will provide the answer as to whether someone is an employee or not: ie the “control” test, the Stevens v Brodribb (1986) 160 CLR 16 indicia as supplemented by some of the considerations discussed in more recent cases such as Hollis v Vabu (2001) 207 CLR 21. However, the situation of clergy is unusual and warrants more detailed comment.

In the main Australian recent case in this area, Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95 the majority judgment pointed out that even within the broad Christian tradition, practices and terminology may differ vastly:

[7] No assumption can or should be made that the organisation or institutions of the church and community in and with which the appellant worked in Australia was necessarily similar to the organisation or institutions of the churches of the western or Latin tradition. To take a seemingly small example noted by the Industrial Magistrate, the witnesses before him spoke of the “consecration” of priests but the “ordination” of bishops, reversing the customary usages of the western or Latin tradition. This is no more than one example of the error that may be made if there is an unthinking application of the practices of one tradition to another. Especially is that so if the questions concern the structures of church governance, the relationship between clergy and laity, or the relationship between the community and whatever may be the group or institution that is identified by that community as the “church”.

The difference there referred to was that between the “Western” branch of Christianity (which, until the Reformation owed allegiance to the Pope, the Bishop of Rome) and other “Eastern” versions such as the Greek Orthodox Church, which was being discussed in that case.

The decision in Ermogenous provides an excellent overview of this whole area for Australia, and we may take the different categories discussed there as a guide to some of the different options for legal recognition of the status of clergy. Broadly speaking, the position of a minister of a church may be seen as (1) not governed by legal principles at all, as purely “spiritual”; (2) governed by law but as a public law “office” rather than as a contract; (3) established as a contract but under the category of “independent contractor”; or (4) set up as an employment contract.

(1) The relationship may be purely “spiritual” and not intended to create legal relations

In some circumstances the courts in the past have concluded that the role of the minister in charge of a local congregation is simply not intended by either party to create obligations that are enforceable by the “secular” legal system at all.

Most of these cases have come not come from the “established” church in the UK; as we will see cases involving the Church of England or the Church of Scotland raise slightly different issues and are usually regarded as at least “legal”. But there are cases where the courts have found that the “spiritual” nature of the duties concerned mean that (on the classic contractual analysis) there was no “intention to create legal relations” include, for example, President of the Methodist Conference v Parfitt [1984] 1 QB 368, Rogers v Booth [1937] 2 All ER 751, and Davies v Presbyterian Church of Wales [1986] 1 WLR 323.

These decisions were followed in NSW in Reverend Howard Ian Knowles and The Anglican Property Trust, Diocese of Bathurst [1999] NSWIRComm 157 (22 April 1999), holding that a minister of the Anglican church was employed on a “spiritual basis”.

A number of decisions to similar effect are cited by the High Court majority in Ermogenous at [19], as relied on by the Full Court of the Supreme Court of SA in its decision. The facts of Ermogenous are that Archbishop Ermogenous had been engaged (to use a neutral word) by the Greek Orthodox Community of SA Inc (an incorporated association) to undertake a range of duties, which included acting as Archbishop of the Greek Orthodox Church in SA, conducting religious services and carrying out other clerical duties. Having been removed from his position in 1994 after working in it since 1970, he claimed that he ought to have been paid annual leave and long service leave owed to him as an employee of the Association.

The Industrial Magistrate at first instance found in favour of the Archbishop, and a judge of the Industrial Relations Court of South Australia upheld this decision. But on appeal to the Full Court of the Supreme Court of SA, the decision was overturned on the basis that there was a long-standing “presumption” that a church and clergyman did not have “intention to create legal relations” under contract law.

The decision of the High Court was that in general it was no longer appropriate to rely on such a presumption (or indeed on other “presumptions” relating to “intention” in this area), and hence that the matter had to be sent back to the Full Court for further consideration of the actual intention of the parties in the relevant circumstances. There were a number of features of the case pointing to the parties all believing that legal obligations were involved, including PAYE deductions and reference to the Archbishop’s “salary”. (See below where we discuss the difference between “salary” and “stipend”.)

The Court also noted that the Association had a high degree of control over the decisions of the Archbishop, even those of a “spiritual” nature- see [17]. Hence the need to revisit the question. In the end, having looked at the matter again, the Full Court on remittal from the High Court held that there was no sufficient reason to overturn the decision of the Industrial Magistrate at first instance, and hence the outcome of the litigation was that the Archbishop indeed was an employee of the Association- see Greek Orthodox Community of SA Inc v Ermogenous [2002] SASC 384 (26 November 2002). Still, as Doyle CJ said, the facts of the particular case were fairly unusual, and it would not be appropriate at all to conclude that henceforth all clergy in Australia were employees.

[9]The issue of whether the contract between the appellant and the respondent is one of employment is not an issue that warrants the grant of leave to appeal. The issue involves the application of well established principles. Although well established, their application to particular circumstances can give rise to difficulty. If anything, that is a reason for caution in granting leave to appeal to raise such a point. Admittedly, the circumstances to which those principles are to be applied in the present case are out of the ordinary. But, to my mind, no general principle will be established in this case for cases involving a contractual relationship between a minister of religion and a church or an entity that in some way retains a minister to exercise his or her ministry. Each case will turn on its own facts, and the most that can be determined in this case is the correct application of the relevant principles to the facts of this case. And, for what it is worth, I think it likely that cases involving the key elements of this case are unlikely to occur at all often. In short, a grant of leave to appeal will involve a close examination of the application of established principles to particular facts, and will not lead to the establishment of any relevant or helpful general principle. That in itself is a reason not to grant leave to appeal, or to rescind leave to appeal. (emphasis added)

In cases where churches, and sometimes other institutions, have been concerned not to signal an employment relationship, sometimes the word “stipend” has been used instead of salary. The word has been regarded as implying a regular payment made for support that does not involve an obligation of “obedience” to orders of the person paying. One of the features of the relationship between a minister and the congregation in which they are placed, of course, is that it is unlike a traditional employment situation, since on most views of the matter, the minister is supposed to provide “spiritual leadership” of some sort, and not just take the orders of the members of the congregation. So, to take an example from the New Testament, see Hebrews 13:17:

 Obey your leaders and submit to them, for they are keeping watch over your souls, as those who will have to give an account. Let them do this with joy and not with groaning, for that would be of no advantage to you.

The view that congregational leaders or elders are to be respected and submitted to, of course, does not preclude the view that they ought to receive some money so that they can devote their time to the ministry (see eg Paul writing in 1 Corinthians 9:1-14.)

So the result of Ermogenous seems to be that in Australia, at any rate, it will not normally be assumed that a clergyman simply has a “spiritual” and not legal relationship with the body that engages him or her, or controls their work. Hence it is interesting to see that Mason P in Trustees of the Roman Catholic Church v Ellis [2007] NSWCA 117 said:

[32] …[It is not] necessary to decide whether a priest in the Roman Catholic Church who is appointed to a Parish is an employee in the eye of the law or otherwise in a relationship apt to generate vicarious liability in his superior.

[33] Patten AJ observed (at [67]) that Lepore alone would not prevent the Trustees being directly and vicariously liable for a failure to institute and maintain proper systems and controls. I am prepared to proceed on a similar basis, although I would express it slightly differently so as to allow for the argument ventilated in this Court about a limited reading and application of Lepore. I shall therefore assume that there is factually and legally an arguable case that Father Duggan’s superiors in the 1970s (including the Archbishop of the day) might on some basis be vicariously accountable for his intentional torts. I shall also assume that members of the Church hierarchy (including the former Archbishop) who were responsible for Father Duggan’s appointment and supervision and for processing complaints of misconduct would arguably have been personally accountable in law for their alleged neglect. See generally Stauffer and Hyde, “The Sins of the Fathers: Vicarious Liability of Churches” (1993) 25 Ottawa Law Rev 561. It is wrong to see holding an ecclesiastical office as necessarily incompatible with a legal relationship capable of giving rise to some incidents of an employment relationship (see generally Ermogenous  v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; Percy v Board of National Mission of the Church of Scotland [2005] UKHL 73; [2006] 2 AC 28).

However, in the circumstances of Ellis it was not the previous Archbishop who was being sued, it was the current Archbishop, who had no connection with the priest at the time; and the Property Trust had no control over the priest’s actions and was clearly not his employer. So while this carefully worded paragraph leaves open the possibility of “some incidents of an employment relationship”, it by no means decides that priests all work under contracts of employment (or, indeed, under contracts at all.) And these concessions did not lead to liability of the Archbishop or the Property Trust in Ellis’s case. (For more comment on church liability for child abuse, see my previous post on this topic.)

The view that some ministers may have a purely “spiritual” and not “legal” relationship with their church is, however, supported by the a decision involving Methodist ministers in the UK, The President of the Methodist Conference v Preston [2013] UKSC 29 (15 May 2013). Some brief background in previous decisions is necessary, however, before we come to Preston itself. The case is part of a trio of top-level decisions in the UK concerning the employment of clergy, two of which involved the Methodist Church and one the Church of Scotland.

In President of the Methodist Conference v Parfitt [1984] 1 QB 368, the first decision, involving the Methodist Church (a “non-established” Protestant denomination having its origins in the ministry of John Wesley), the House of Lords held the minister concerned was not an employee. Reasons differed but at least one of the significant factors was the “spiritual” character of the work.

In Percy v Board of National Mission of the Church of Scotland [2006] 2 AC 28 the plaintiff was an “associate minister” of the Church of Scotland (which is something like the “established” church in Scotland, and corresponds to what in Australia we would call the Presbyterian Church), and wanted to bring a sex discrimination claim under the relevant legislation. The legislation did not hinge on the standard “employee” criterion- it was a bit broader, referring to someone who “contracted personally to execute any work or labour”, and so the decision could be confined to that specific phrase. Nevertheless, the House of Lords reviewed the history of the employment status of clergy and explicitly held that there should be no “presumption” that a minister held a non-contractual position; that each case needed to be resolved by a careful review of the specific arrangements. In Ms Percy’s case the details of her job offer and other conditions meant that it was a contractual arrangement.

Finally, then, in Preston, the issue of Methodist ministers came up again. The Supreme Court did not directly depart from Percy, but it has to be said that the feel of the decision is quite different. The majority (Lady Hale dissented) looked carefully at the various documents and arrangements under which Ms Preston had been appointed as a Methodist minister in charge of a local church, and concluded that when viewed together they did not show a contract had been entered into. A candidate for the ministry had to be ordained by a Session of the church and was then “stationed” where the Church needed them to operate. Formally they could be sent anywhere they were required, the Church not needing their consent to the posting. They could not resign their “connexion” at will, needing permission of a central Church body. Their ordination was to a “life-long presbyteral ministry of word, sacrament and pastoral responsibility”- see [17].

The comments at [19] reflect the difference between “salary” and “stipend” noted above:

Section 80 of the standing orders provides for the “support and maintenance” of ministers. Under standing order 801, all ministers in active work and all stationed probationers are entitled to a stipend throughout their ministry, including periods of unlimited duration when they may be unable to perform their duties on account of illness or injury. In addition, they are entitled under standing order 803 to a manse to serve as a home and as a base for their ministry. Neither the stipend nor the manse are regarded by the Methodist Church as the consideration for the services of its ministers. They regard them as a method of providing the material support to the minister without which he or she could not serve God. In the Church’s view, the sale of a minister’s services in a labour market would be objectionable, as being incompatible with the spiritual character of their ministry. (emphasis added)

As noted previously, Lady Hale dissented. It has to be said, I think, that it is more likely that her Ladyship’s view would be followed in an Australian court, than that of the majority. As she notes, while it can be conceded that the work of a minister is of a “spiritual” nature, that is not inconsistent with there being legal relationships in place- eg see [36]. She also notes that it would be unthinkable that if a minister were denied payment of his or her stipend at all, or were threatened for no reason with eviction from their “manse” (church provided accommodation), that the courts would not come up with a legal remedy. While Lord Sumption (for the plurality) at [28] dismissed this argument as irrelevant to the present case, suggesting that probably some remedy would be found in the law of trusts, I think her Ladyship is correct to say that the existence of legal remedies in this area do point to a contractual basis for the arrangement.

So, in sum, the argument that clergy enjoy only a “spiritual” and not a legal basis of engagement may be supported in some cases; though it seems a bit hard to believe that an Australian court today would, in light of the comments in Ermogenous, rule the same way except in a very unusual situation.

(2) The position may be an “office” subject to public law, not private law obligations

Another possibility is that a clergyman might be viewed as the holder of an “office”. Lord Sumption probably provides the best recent overview of this concept in Preston at [4]:

 [The] distinction between an office and an employment… is that an office is a position of a public nature, filled by successive incumbents, whose duties were defined not by agreement but by law or by the rules of the institution. A beneficed clergyman of the Church of England is, or was until recent measures modified the position, the paradigm case of a religious office-holder. But at an early stage curates in the Church of England were recognised as having the same status for this purpose: see In re Employment of Church of England Curates [1912] 2 Ch 563. The position of other ministers was taken to be analogous. In Scottish Insurance Commissioners v Church of Scotland (1914) SC 16, which concerned an assistant minister in the United Free Church of Scotland, Lord Kinnear said at 23 that the status of an assistant minister “is not that of a person who undertakes work defined by contract but of a person who holds an ecclesiastical office, and who performs the duties of that office subject to the laws of the Church to which he belongs and not subject to the control and direction of any particular master.” In Diocese of Southwark v Coker [1998] ICR 140, the Court of Appeal held that a stipendiary assistant curate was not an employee. They held that his duties were derived from his priestly status and not from any contract. Both Mummery LJ (at 147) and Staughton LJ (at 150) considered that there was a presumption that ministers of religion were office-holders who did not serve under a contract of employment.

In general it seems unlikely that cases in Australia would be decided on this “public law” basis, as neither the Anglican Church nor any other church is “established” in the sense that the Church of England is. Interestingly the High Court in Ermogenous did seem to use the word “office” in perhaps a more generic sense in the following comments:

[31] In the present case, any conclusion that the appellant was appointed to an office, let alone an ecclesiastical office, would depend upon the conclusions that are to be reached, first about who it was that appointed or engaged him, and secondly, about what was the entity or organisation within which the “office” existed. Both of those issues require consideration of the structures of the organisation in which the office is said to exist. In the Curates Case and in Paul those issues were readily resolved – by reference, in the former case, to the structures of a church by law established and, in the latter, by reference to the internal rules of the church under which the authority of an assistant minister derived from the licence given to him by the presbytery concerned. By contrast, the question for decision in the present matter required examination of whether “the church” was to be regarded as separate from the respondent and whether the appellant was appointed to an office identified and regulated only by the internal rules of that “church”. It should go without saying that those matters of church structure and governance may very well differ in the present case from those that exist in other churches and communities and that there can, therefore, be no automatic translation of what was decided in the Curates Case or Paul to the present. Whether a conclusion that the appellant had been appointed to an ecclesiastical office would preclude a conclusion that he served in that office under a contract of employment is a question we need not explore.

The final suggestion, that even in some sense a minister held an “office” under the internal rules of an organisation, that would not prevent the minister from being employed under a contract, seems to be the direction that the courts generally are leaning. Even in England, in Preston, Lord Sumption in the majority commented at [8] that “offices and employments are not always mutually exclusive categories”.

To similar effect is the conclusion of the English Court of Appeal in JGE v The Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938 (12 July 2012). This is a decision some aspects of which I disagree with; but on the point of employment it seems to be right. The decision concludes that a Roman Catholic priest was not an employee of the local bishop- see eg:

 [29]       Although it is perhaps trite to say it, these cases appear to me to establish that the following approach should be followed:

(1) each case must be judged on its own particular facts;

(2) there is no general presumption of a lack of intent to create legal relations between the clergy and their church;

(3) a factor in determining whether the parties must be taken to have intended to enter into a legally binding contract will be whether there is a religious belief held by the church that there is no enforceable contractual relationship;

(4) it does not follow that the holder of an ecclesiastical office cannot be employed under a contract of service.

[30]       Applying those principles to the facts in this case, I am completely satisfied that there is no contract of service in this case: indeed there is no contract at all. The appointment of Father Baldwin by Bishop Worlock was made without any intention to create any legal relationship between them. Pursuant to their religious beliefs, their relationship was governed by the canon law, not the civil law. The appointment to the office of parish priest was truly an appointment to an ecclesiastical office and no more. Father Baldwin was not the servant nor a true employee of his bishop.[5]

A similar outcome was held to follow in the recent case of Sharpe, mentioned above. The case involved the classic example of an “office” under English law, a “beneficed” clergyman. This meant that Rev Sharpe had not been simply appointed to his position by a resolution of the local Parish Council or decision of the Bishop; he was an “office-holder”, holding a “benefice”, which is a parish appointment under a system dating back many centuries in which a local land-holder, the “patron”, has the right to nominate a member of the clergy to the position in the parish. There is a fascinating review of the law of “advowsons” (an “advowson” was the old name for the right to nominate a clergyman to a parish) and how it has changed over the years in the judgement of Lewison LJ. He notes that:

Historically the incumbent’s income came from the glebe. Some benefices were richly endowed and gave their patrons considerable powers of patronage and advancement. In Pride and Prejudice Mr Collins fawns on Lady Catherine de Burgh because she had the gift of the living.

In the circumstances where Rev Sharp had only been appointed after nomination by the local “patron”, where he had signed no agreement with the Bishop or the Parish Council, and where most of his duties were prescribed by the law of the church rather than by agreement with anyone, the Court of Appeal held that he was not an employee, and indeed had no contract with anyone. He had legal obligations, flowing from ecclesiastical law, but no contractual obligations. Hence he was unable to rely on the provisions of unfair dismissal legislation relating to employees and “workers”, in complaining about events which led up to him being forced (as he said) to resign from his parish.

There is an excellent overview of the decision from Russell Sandberg on the Law and Religion UK blog which provides more details. He notes that the decision, while it reaffirms in the particular circumstances the unusual status of a beneficed clergyman, essentially reaffirms the approach which has developed in clergy employment cases in the UK in recent years: that there is no longer any broad “presumption” that a cleric cannot have a contract or be an employee; that the particular circumstances of each case need to be considered. He notes:

Twenty-first century cases have shown that ministers of religion can be employees: it all depends on the facts. This means that the traditional placing of ministers of religion on a list in employment law textbooks of those offices that are not usually regarded as “employees” is now questionable. Ministers of religion are now in the same position as anyone else who wants to prove employment status: they need to point to a contract of employment and, since at least Percy, it has been clear that the simple facts that they are “employed by God” or hold an ecclesiastical office would not on their own mean that they would not be found to be employees.

As we will see, this is now very close to the situation in Australia.

(3) The minister may have a contract, but not a contract of employment

The High Court of Australia in Ermogenous was very clear that a minister of religion may well operate under a contract, even if they have “spiritual” duties.

[37] That the relationship between a minister of religion and the relevant religious body or group in which, and to which, he or she ministers is, at its root, concerned with matters spiritual is self-evidently true. That the minister’s conduct as minister will at least be informed, if not wholly governed, by consideration of matters spiritual is likewise self-evident. It by no means follows, however, that it is impossible that the relationship between the minister and the body or group which seeks or receives that ministry will be governed by a contract…

In the circumstances the High Court concluded that the Industrial Magistrate had been entitled to find that a contract was in place. They reserved their opinion on whether it was a “contract of employment” or not- see [46]- although as we have noted that issue was decided in favour of the Archbishop really by default because the Full Court on referral deferred to the Industrial Magistrate’s findings of fact.

Acknowledging that it seems likely that an Australian court would find today that a minister of religion was engaged under some sort of contract where there were formal arrangements in place for salary, tax, accommodation, etc, does this mean that all ministers are employees? In my view this is by no means the case. The fundamental “indicia” of employment still start with consideration of the notion of “control”. It may seem unlikely that a congregation that a minister was meant to be leading could be said to exercise “control”. Even denominational officers in general do not exercise a great deal of supervision over their ministers. So it seems to me unlikely that most ministers of religion would be regarded as employees.

Perhaps an example of this, although it is not precisely on this point, is the fact that in Sturt v The Right Reverend Dr Brian Farran Bishop of Newcastle [2012] NSWSC 400 (27 April 2012) Lindsay J, having referred to the cases discussed above, was not able to conclude on the evidence provided of “normal parish work” by the two priests concerned that they were employees of the Bishop. However, this was not crucial to the resolution of the case- the fact that the priests were not employees did not imply that their challenge to the disciplinary procedures could not be heard; that challenge proceeded on the basis that they had the equivalent of a “property” right in their office of priest, and hence had a sufficient interest to challenge the relevant procedures.

(4) The minister might be an employee

I said previously that I thought it unlikely that most ministers of religion would be regarded as employees. One decision of the Victorian County Court, however, goes against this view. In McDermid v Anglican Trusts Corporation for the Diocese of Gippsland & McIntyre [2012] VCC 1406 (20 December 2012) the issue was whether a priest working in the Anglican Diocese of Gippsland could sue either his Bishop or the Church Property Trust for statutory compensation for psychological harm he claimed to have suffered due to bullying. Success depended upon him establishing that he was a “worker” under the Accident Compensation Act 1985 (Vic).

The County Court Judge, O’Neill J, reviewed the arrangements for the priest to be licensed by the local Bishop. He agreed that the Property Trust, which arranged for payment of his stipend, could not be his employer as it exercised no control whatsoever over his appointment or activities- see [42]. His Honour also regarded as irrelevant the fact that s 12 of the Act allowed certain persons to be “deemed” to workers of a religious organisation if regulations were made. (To be frank, this alone in my view is reason to doubt the correctness of the decision. The section clearly seems to assume that at least some religious personnel will not be “workers” under the common law definition of employee. But his Honour said that it left open the option that ministers could be employees at common law.)

His Honour correctly cited Ermogenous and Percy for the proposition that clergy could be said to enter into a contractual relationship. However, having reviewed the circumstances of the appointment and the nature of the bishop’s relationship to the priest, his Honour concluded not only that there was an intention to enter a contract, but also that it was a contract of service which made the priest an employee- see eg para [80]. I must say that it seems to be that, while formally separating the two issues of “contract” and “contract of service”, his Honour could be said to run the two issues together very closely. My view would be that this decision is probably wrong.

In particular a problem can be seen from paras [81] ff: if the priest was an employee, who was his employer? It was not the Property Trust who paid him; it was not the Appointments Advisory Board, which had recommended his appointment to the Bishop. It was not the Bishop’s Advisory Board, nor could it be said to be “the Diocese” or “the local parish” – these were non-existent entities, of course, as unincorporated associations (all the Anglicans in Gippsland, or all the Anglicans in the area covered by the local parish.) While his Honour explicitly said at [85] that it was not “a process of elimination”, the fact is that the Bishop was the only other plausible legal person once the others were discounted!

Once a blind alley like this has been reached, it might be suggested that a wrong turning was taken a few corners ago. The difficulty in identifying an employer to my mind illustrates the problems with the conclusion that the priest was an employee.

This is not to say that the view might not be reached in some cases that a minister is an employee, of course. An example from the UK is the decision of the Court of Appeal in New Testament Church of God v Stewart [2008] ICR 282. This of course involved a non-established church officer and was hence much more amenable to a contractual analysis.

To sum up, in Australia at least it still seems likely that a cleric in charge of a local congregation will not usually be an employee. In churches where the local governing body is clearly a legal “person”, through incorporation, then if there are agreements in place it seems likely that there would be a contract, though usually not a contract of employment. In the “traditional” denominations there may still be some lack of clarity. A court would probably, however, be reluctant to conclude that obligations seriously entered into had no legal effect at all, and so would probably aim to find some entity whom it could hold responsible for carrying out duties such as payment and supervision. There will be increasing pressure in the future, no doubt, for even the major “episcopal” denominations to provide a clearly identified “legal person” who can assume responsibility for the actions of clergy.